Law School Discussion

ABA Model Rule 5.5 And Prior non-Legal Experience

ABA Model Rule 5.5 And Prior non-Legal Experience
« on: September 22, 2011, 12:32:04 AM »
So, I have a strange inquiry and have not been able to find any case law on point in my jurisdiction (Kansas), hoping somebody might have some thoughts.

Model Rule 5.5 covers practicing law without a license. I'm pretty sure that most law students get the whole "you'll have friends/family asking you questions that at least border on seeking legal advice. You can't give it!" lecture the first week of school. It's pretty straight forward really, but I feel like I'm in a grey area (and Professional Responsibility right now, too!). The question is this:

I have a couple of non-law friends that are working in the industry I came out of before law school (film and television production), and we talk frequently and comings and goings. Occasionally, we get to talking about the business side of the industry. I've already broached the topic of "I can't give you advice on that question except to say you need to consult an attorney." But my question goes a little deeper - what if we are talking and questions come up about things that are (1) common knowledge in the industry and (2) generally available information about how and why things are set up the way they are. Hypothetically, could I say "I read a good book called The Hollywood Economist, and the guy that wrote it explains why films are set up as LLPs or LLCs. You should do that with your short film;" or "you need to get a contract drafted for that" without committing an ethics violation? It's a grey area where I err on the side of "I can't tell you, consult an attorney." But can I talk to them about information I have read about in non-legal contexts from non-legal sources?

At what point does prior non-legal experience in this field get into the realm of legal advice? I feel like I'm in a vulnerable spot because they know I'm a law student, but they also know that I read a lot and am interested in the business side. And being in Business Associations right now, I feel like a lot of the information crosses over from what I've already read prior to enrollment. I might have information about what they should do gleaned from non-legal sources, but that certainly could be painted on the border of being legal advice. As I said, whenever we talk about the business side, I just kind of shut down out of fear of violating an ethics rule. But I still want to be able to talk to my friends about it. Is there any way I can have a meaningful discussion beyond just "here's a book/article you need to read?" Would telling them that most films are created as LLPs in order to insulate the producers from personal liability violate an ethics rule? I don't know where the line is. Thoughts?

Re: ABA Model Rule 5.5 And Prior non-Legal Experience
« Reply #1 on: September 22, 2011, 06:50:01 AM »
The intent of the rule is that you do not "practice" without a license - that is to protect you and the public.  You are not prohibited from having conversations or even exploring legal concepts with people so long as it is crystal clear to the folks you are talking with that (1) you are not a licensed attorney, and (2) you are not providing legal advice that they should rely upon.  Sounds to me like you have covered your bases.  I frequently had conversations, and still do now that I am licensed, where the discussion is prefaced a lot with "based on what I currently know," "I have not researched the issue, so this is just an opinion," or "I am not giving legal advice, but it sounds to me like..."  Always wrapping up with, "if you think this is an issue you should hire an attorney to handle this."

I think you could outline a whole case, develop the cause of action, etc., etc., so long as you did not get paid, the person knew he could not act on it, and that if he were to act on it, he would need to start from scratch with a licensed attorney - perhaps using your conversations as a basis for questioning his "real" counsel.

Of course I am not providing you with any legal advice here... I have not researched Kansas laws, so this is just my opinion. :)


Re: ABA Model Rule 5.5 And Prior non-Legal Experience
« Reply #2 on: September 22, 2011, 11:46:25 AM »
When in doubt, shut up.

It's that simple. If you feel strong you are safe, send the local law bar your question and list of actions with your full name and return address for a responce.

If that thought bugs you, you should stop doing it.

Afterall, we BS too much about law as it is, when with other people outside class(and this place) talk about girls butts or sports or something. Dang man.